Lapas attēli
[blocks in formation]

as these in their advanced stage of completion, and (the Committee) strongly recommends that these projects not

be stopped because of misuse of the Act." Once again, the appropriations bill was passed by both Houses and signed into law.

II Today the Court, like the Court of Appeals below, adopts & reading of § 7 of the Act that gives it a retroactive effect and disregards 12 years of consistently expressed congressional intent to complete the Tellico Project. With all due respect, I view this result as an extreme example of a literalist 10 struction, not required by the language of the Act and adopted without regard to its manifest purpose. Moreover, it ignores established canons of statutory construction.



The starting point in statutory construction is, of course, the language of $ 7 itself. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (POWELL, J., concurring). I agree that it can be viewed as a textbook example of fuzzy language, which can be read according to the “eye of the beholder.” 11 The critical words direct all federal agencies to take “such action (as may be] necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of ... endangered species ... or result in the destruction or modification of [a critical] habitat of such species ... Respondents—as did

H. R. Rep. No. 95–379, p. 104 (1977).

10 See Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Colum. L. Rev. 1259, 1263 (1947); Hand, The Speech of Justice, 29 Harv. L. Rev. 617, 620 (1916).

11 The purpose of this Act is admirable. Protection of endangered species long has been neglected. This unfortunate litigation-wasteful for taxpayers and likely in the end to be counterproductive in terms of re spondents' purpose-may have been invited by careless draftsmanship of otherwise meritorious legislation.

[blocks in formation]

the Sixth Circuit-read these words as sweepingly as possible to include all "actions" that any federal agency ever may take with respect to any federal project, whether completed or not.

The Court today embraces this sweeping construction. Ante, at 184–188. Under the Court's reasoning, the Act covers every existing federal installation, including great hydroelectric projects and reservoirs, every river and harbor project, and every national defense installation-however essential to the Nation's economic health and safety. The "actions” that an agency would be prohibited from "carrying out” would include the continued operation of such projects or any change necessary to preserve their continued usefulness." The only precondition, according to respondents, to thus destroying the usefulness of even the most important federal project in our country would be a finding by the Secretary of the Interior

12 Ante, at 184–188. At oral argument, respondents clearly stated this as their view of 8 7:

"QUESTION: ... Do you think—it is still your position, as I understand it, that this Act, Section 7, applies to completed projects? I know you don't think it occurs very often that there'll be a need to apply it. But does it apply if the need exists?

"MR. PLATER: To the continuation"QUESTION: To completed projects. Take the Grand Coulee dam"MR. PLATER: Right. Your Honor, if there were a species there

"_it wouldn't be endangered by the dam.

"QUESTION: I know that's your view. I'm asking you not to project your imagination

"MR. PLATER: I see, your Honor.
"QUESTION: -beyond accepting my assumption.
"MR. PLATER: Right.

"QUESTION: And that was that an endangered species might turn up at Grand Coulee. Does Section 7 apply to it?

“MR. PLATER: I believe it would, Your Honor. The Secretary of the Interior

"QUESTION: That answers my question.
"MR. PLATER: Yes, it would.” Tr. of Oral Arg. 57–58.

[blocks in formation]

that a continuation of the project would threaten the survival or critical habitat of a newly discovered species of water spider or amoeba.18

"[F]requently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act." Church of the Holy Trinity v. United States, 143 U. S. 457, 459 (1892). The

13 Under the Court's interpretation, the prospects for such disasters are breathtaking indeed, since there are hundreds of thousands of candidates for the endangered list:

“'The act covers every animal and plant species, subspecies, and population in the world needing protection. There are approximately 1.4 million full species of animals and 600,000 full species of plants in the world. Various authorities calculate as many as 10% of them some 200,000—may need to be listed as Endangered or Threatened. When one counts in subspecies, not to mention individual populations, the total could increase to three to five times that number.'” Keith Shreiner, Associate Director and Endangered Species Program Manager of the U. S. Fish and Wildlife Service, quoted in a letter from A. J. Wagner, Chairman, TVA, to Chairman, House Committee on Merchant Marine and Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting an Endangered Statute: The Endangered Species Act of 1973, 37 Federal B. J. 25, 27 (1978).

14 Accord, e. g., United States v. American Trucking Assns., 310 U. S. 534, 543 (1940); Armstrong Co. v. Nu-Enamel Corp., 305 U.

315, 333 (1938); Sorrells v. United States, 287 U. S. 435, 446,448 (1932) (collecting cases); United States v. Ryan, 284 U. S. 167, 175 (1931). The Court suggests, ante, at 187 n. 33, that the precept stated in Church of the Holy Trinity was somehow undermined in Crooks v. Harrelson, 282 U. S. 55, 60 (1930). Only a year after the decision in Crooks, however, the Court declared that a “literal application of a statute which would lead to absurd consequences is to be avoided whenever a reasonable application can be given which is consistent with the legislative purpose.” Ryan, supra, at 175. In the following year, the Court expressly relied upon Church of the Holy Trinity on this very point. Sorrells, supra, at 448. The real difference between the Court and myself on this issue arises from our per

[blocks in formation]

result that will follow in this case by virtue of the Court's reading of $ 7 makes it unreasonable to believe that Congress intended that reading. Moreover, $7 may be construed in a way that avoids an "absurd result" without doing violence to its language.

The critical word in § 7 is "actions” and its meaning is far from "plain.” It is part of the phrase: "actions authorized, funded or carried out.” In terms of planning and executing various activities, it seems evident that the “actions” referred to are not all actions that an agency can ever take, but rather actions that the agency is deciding whether to authorize, to fund, or to carry out. In short, these words reasonably may be read as applying only to prospective actions, i. e., actions with respect to which the agency has reasonable decisionmaking alternatives still available, actions not yet carried out. At the time respondents brought this lawsuit, the Tellico Project was 80% complete at a cost of more than $78 million. The Court concedes that as of this time and for the purpose of deciding this case, the Tellico Dam Project is "completed” or “virtually completed and the dam is essentially ready for operation,” ante, at 156, 157-158. See n. 1, supra. Thus, under a prospective reading of $ 7, the action already had been "carried out” in terms of any remaining reasonable decisionmaking power. Cf. National Wildlife Federation v. Coleman, 529 F. 2d 359, 363, and n. 5 (CA5), cert. denied sub nom. Boteler v. National Wildlife Federation, 429 U. S. 979 (1976).

This is a reasonable construction of the language and also is supported by the presumption against construing statutes to give them a retroactive effect. As this Court stated in

ceptions of the character of today's result. The Court professes to find nothing particularly remarkable about the result produced by its decision in this case. Because I view it as remarkable indeed, and because I can find no hint that Congress actually intended it, see infra, at 207-210, I am led to conclude that the congressional words cannot be given the meaning ascribed to them by the Court.

[blocks in formation]

United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells Co., 209 U. S. 306, 314 (1908), the “presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other.” This is particularly true where & statute enacts a new regime of regulation. For example, the presumption has been recognized in cases under the National Environmental Policy Act, 42 U. S. C. $ 4321 et seq., holding that the requirement of filing an environmental impact statement cannot reasonably be applied to projects substantially completed. E. g., Pizitz, Inc. v. Volpe, 467 F.2d 208 (CA5 1972); Ragland v. Mueller, 460 F. 2d 1196 (CA5 1972); Greene County Planning Board v. FPC, 455 F. 2d 412, 424 (CA2), cert. denied, 409 U. S. 849 (1972). The Court of Appeals for the Fourth Circuit explained these holdings.

"Doubtless Congress did not intend that all projects ongoing at the effective date of the Act be subject to the requirements of Section 102. At some stage of progress, the costs of altering or abandoning the project could so definitely outweigh whatever benefits that might accrue therefrom that it might no longer be ‘possible' to change the project in accordance with Section 102. At some stage, federal action may be so 'complete that applying the Act could be considered a “retroactive' application not intended by the Congress.” Arlington Coalition on Transportation v. Volpe, 458 F. 2d 1323, 1331, cert. denied sub nom. Fugate v. Arlington Coalition on Transporta

tion, 409 U. S. 1000 (1972). Similarly under $7 of the Endangered Species Act, at some stage of a federal project, and certainly where a project has been completed, the agency no longer has a reasonable choice simply to abandon it. When that point is reached, as it was in this case, the presumption against retrospective interpretation is at its strongest. The Court today gives no weight to that presumption.

« iepriekšējāTurpināt »